It might take a Democratic campaign staffer just a few minutes to write the script for a scorching attack ad based on the federal indictment of Donald Trump and his alleged conduct handling classified documents.
The allegations that Trump swiped top secret materials about military and nuclear capabilities, waved them around to guests at his Mar-a-Lago estate, and stored them in bathrooms might constitute as compelling and concise a case against his re-election as exists.
Yet, it’s possible—even very likely—that such an attack ad will never be made in the context of the 2024 presidential campaign.
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It’s something like the ultimate catch-22 for Democrats: Although the facts in the indictment could have a unique potency in the race, they can’t talk about them for fear of risking the integrity of a case that Republicans have attacked as a politically motivated ploy to derail Trump.
Even as Republicans have largely shied from explicitly defending Trump on the merits, they have loudly howled that the indictment is tantamount to political prosecution from a president seeking to eliminate his likely rival in the upcoming election.
President Joe Biden has consistently declined to comment on the work of Special Counsel Jack Smith, who brought the indictment. Over the weekend, Biden claimed he had not spoken with Attorney General Merrick Garland about it. And his White House has long stated that he had no role in Department of Justice probes both into Trump’s handling of classified documents and his own, which is being led by Special Counsel Robert Hur.
With some exceptions, Democratic lawmakers and politicians have largely ignored the indictment aside from issuing proclamations such as “No one is above the law.” When asked, the Democratic National Committee has advised some members of Congress going out on television to not comment on the indictment as the legal process plays out, according to a source familiar with the conversations.
The reluctance among Democrats to even come close to legitimizing the perception of a politically motivated prosecution means that the president—down to his party, surrogates, and outside support PACs and organizations—are unlikely to touch the indictment news with a 37-foot pole anytime soon. (One foot for each count in the indictment.)
With a heated GOP primary brewing, and some Trump challengers and former loyalists growing increasingly willing to attack him over the indictment, there is a consensus developing among some Democrats that they are better served by ignoring the indictment and focusing on Biden’s record.
“The calculus everyone is making right now is: Shut the fuck up, let the Republicans kill each other, let things play out while we focus on Biden’s accomplishments and economic wins—and let that in itself be the contrast,” said a Democratic strategist, who requested anonymity to candidly describe the mood in their circles.
“It’s like when your ex is a gambling addict or doing coke—you let everyone see it,” the strategist continued. “You don’t have to beat them when they’re down. You just have to look hot and post bikini photos.”
If anything, one Democratic operative said, the party’s top task will be to connect the indictment to a broader framing that has proven politically potent for them: emphasizing what House Minority Leader Hakeem Jeffries calls the “Team Normal” versus “Team Extreme” divide.
“I don’t think the indictments themselves will settle the election, but the reaction to them from Trump and his supporters attacking law enforcement will be used to further the narrative about the extremism and anti-democratic tendencies of the MAGA Republicans,” said David Brock, an operative who has helped coordinate Democrats’ messaging about the GOP for many election cycles.
Asked whether Biden and his campaign should have any role in furthering that narrative, Brock responded, “That’s mainly a role for outside groups and voices.” In other words, outside PACs or Biden supporters might one day amplify arguments related to the federal indictment, but don’t expect Biden himself to do it.
Fittingly, the Biden campaign did not respond to a request for comment from The Daily Beast.
Although Trump has already been indicted once, the circumstances around his federal indictment underscore just how unprecedented his 2024 campaign will be, and how delicately Biden and Democrats will have to navigate the machinations of legal accountability for the former president that are finally coming to a head.
In some ways, the federal indictment fits neatly into Democrats’ 2024 messaging. It’s broadly similar to how they viewed the impact of the indictment brought by Manhattan District Attorney Alvin Bragg over Trump’s alleged hush money payments to the porn star Stormy Daniels.
In April, many Democrats declined to comment much on that case, despite the shocking nature of the first-ever criminal indictment of a former president. They did not want to be seen as capitalizing on a grim and somber development for political purposes.
But the clear disparity in the severity of allegations in Bragg’s indictment versus that of federal prosecutors seems to have prompted some top Democratic officials to weigh in more forcefully.
Rep. Ted Lieu (D-CA), the fourth-ranking House Democrat, has tweeted over a dozen times to his 1.6 million followers about the indictment, mixing rapid response to GOP defenses of Trump with commentary on the case.
“Anyone who has served, or is serving, in our military and intelligence agencies understand that if the charges against Trump are true, then Trump engaged in dishonorable, unpatriotic and criminal conduct,” tweeted Lieu, a former reservist in the U.S. Air Force.
But Lieu—who is known for his lack of restraint on Twitter—is the exception for Democrats, not the rule. Most Democrats in Congress simply passed on saying anything substantive about the indictment.
There are decidedly more pitfalls for Biden and Democrats in handling the Trump indictment than the fact that his own Department of Justice brought the charges. There is also the fact of the separate special counsel investigation into Biden’s own handling of classified documents.
In January, Garland appointed Hur to investigate Obama administration documents that were found by federal investigators at his think tank in Washington and at his home in Wilmington, Delaware. Last week, NBC News reported that Biden has not yet been interviewed in that probe and that it does not appear close to conclusion.
But there are key differences already known between Trump’s case and Biden’s. The president and his lawyers say they have cooperated fully with federal authorities, allowing them to search his properties and voluntarily handing over documents; Trump has resisted cooperation at every step, requiring the FBI to obtain a warrant to search his Mar-a-Lago estate.
NBC reported that Garland’s studious effort to demonstrate that Trump and Biden were being treated equally has frustrated the president’s team. It’s also likely that if the probe results in anything less than charges for Biden, no matter the facts, many Republicans will continue crying foul and complaining about an unequal standard of justice.
Regardless of what Democrats do—or how quickly the case proceeds in Florida federal court—the facts of the indictment will likely be background noise, at the very least, for the 2024 campaign, if not something that Trump and his GOP backers are actively responding to.
At that point, said Democratic strategist Jesse Ferguson, it may be more imperative for Republicans to run ads on the indictment, not Biden.
“Their entire brand was premised on the idea that they’re ‘tough on crime’ but now they’re running behind a standard-bearer who is indicted for obstruction of justice,” Ferguson said. “How long before they have to run an ‘I’m not a crook’ ad?”
